State ex rel. Nebraska State Bar Ass'n v. Radosevich

• Decision Date: 11 June 1993
• Docket Number: No. S-92-722,S-92-722
• Citation: 501 N.W.2d 308,243 Neb. 625
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Charles M. RADOSEVICH, Respondent.
• Court: Nebraska Supreme Court

Page 308

501 N.W.2d 308

243 Neb. 625

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Charles M. RADOSEVICH, Respondent.

No. S-92-722.

Supreme Court of Nebraska.

June 11, 1993.

Syllabus by the Court

1. Disciplinary Proceedings: Due Process. An attorney is entitled to due process of law in a disciplinary proceeding.

2. Disciplinary Proceedings: States: Proof. The respondent in a Nebraska reciprocal discipline action, when challenging the process by which he was sanctioned in another jurisdiction, bears the burden of demonstrating the infirmity of that process.

3. Disciplinary Proceedings: Due Process: States: Proof. When the respondent in a reciprocal discipline action in Nebraska challenges, on due process grounds, the process by which he was disciplined in the other jurisdiction, the following guidelines govern the hearing before the special master: (1) Respondent's claims that he was denied due process in the course of the other proceeding shall be evaluated solely on the basis of the record of that proceeding; (2) respondent shall bear the burden of proof that he was not afforded due process of law in the other proceeding; (3) if respondent fails to satisfy his burden of proof, a certified copy of the findings of fact of the other proceeding shall constitute conclusive evidence that respondent is guilty of the misconduct charged; (4) the referee shall evaluate respondent's fitness to practice law in Nebraska and what, if any, discipline would be appropriate; and (5) respondent bears the burden of showing that the discipline to be imposed should be less severe than that imposed in the other state.

4. Disciplinary Proceedings: States. Despite a finding that a Nebraska attorney is guilty of the misconduct which led to sanctions in another state, in an action for reciprocal discipline, this court is entitled to make an independent assessment of the facts, an independent determination of his fitness to practice law in Nebraska, and an independent determination of the appropriate measure of discipline in this state.

5. Disciplinary Proceedings. Misappropriation of client funds is conduct sufficient to warrant a sanction of disbarment.

Dennis G. Carlson, Counsel for Discipline, for relator.

Charles M. Radosevich, pro se.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

This is an original action for reciprocal discipline filed against Charles M. Radosevich, a Nebraska attorney, disbarred in Colorado. After conducting a hearing, the special master found Radosevich should be disbarred in Nebraska. Radosevich was then ordered to show cause why the findings of the master should not be adopted. We find Radosevich has not done so; we thus order him disbarred.

Radosevich, an attorney licensed in both Colorado and Nebraska, was disbarred by the Colorado Supreme Court on October 30, 1989. People v. Radosevich, 783 P.2d 841 (Colo.1989). The court based its decision on the recommendation of a disciplinary hearing panel, which found Radosevich had improperly withdrawn approximately $265,000 in client funds for personal use.

A motion for reciprocal discipline was then filed in Nebraska, pursuant to Neb.Ct.R. of Discipline 21(A) (rev. 1992). Radosevich answered, alleging the Colorado attorney disciplinary scheme was unconstitutional. This court then ordered a hearing to be held on the merits of Radosevich's challenges, as contemplated by State ex rel. NSBA v. Dineen, 235 Neb. 363, 455 N.W.2d 178 (1990).

At the proceeding before the special master, Radosevich raised two due process challenges to Colorado's disciplinary scheme. He first argued that the Colorado disciplinary hearing board was not comprised as required by that state's disciplinary rules. Radosevich next contended that the Colorado disciplinary scheme violated his right to have the final decisionmaker in the disciplinary action actually hear the evidence presented.

After the hearing, the special master rejected both challenges and recommended that Radosevich be disbarred. Radosevich was then ordered to show cause why the special master's findings should not be adopted and why he should not be so disciplined. In his brief to this court, Radosevich's sole assignment of error is that the special master erred in finding that he was not deprived of due process by the Colorado disciplinary proceeding.

Although a judicial determination of attorney misconduct in another state is generally given conclusive effect, this court is entitled, in a reciprocal discipline action, to independently assess the facts and independently determine the appropriate disciplinary action to be taken against the attorney in this state. Dineen, supra. Furthermore, while it is unquestioned that an attorney is entitled to due process of law in a disciplinary proceeding, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), modified on other grounds, 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d 1380, the respondent in a Nebraska reciprocal discipline action, when challenging the process by which he was sanctioned in another jurisdiction, bears the burden of demonstrating the infirmity of that process. Dineen, supra. To that end, we have established certain guidelines to be employed when a hearing is conducted to determine the constitutionality of the other jurisdiction's disciplinary proceeding. As applied to the case at bar, these guidelines provide:

(1) Respondent's claims that he was denied due process in the course of the [Colorado] proceeding ... shall be evaluated solely on the basis of the record of that proceeding; (2) respondent shall bear the burden of proof that he was not afforded due process of law ... in the [Colorado] proceeding; (3) if respondent fails to satisfy his burden of proof, a certified copy of the findings of fact of the [Colorado] proceeding shall constitute conclusive evidence that respondent is guilty of the misconduct charged; (4) the referee shall evaluate respondent's fitness to practice law in Nebraska and what, if any, discipline would be appropriate; and (5) respondent bears the burden of showing that the discipline to be imposed should be less severe than that imposed in [Colorado].

Id. 235 Neb. at 368, 455 N.W.2d at 181.

We thus turn to Radosevich's arguments. He first argues that he was denied due process because the Colorado hearing board which heard the evidence against him was not constituted in accordance with Colo.R.Civ.P. 241.14 (codified at Colo.Rev.Stat.Ann. ch. 20 (West 1990)).

Under Colorado's disciplinary rules, a three-person hearing board is assigned disciplinary complaints by one of two nine-member hearing panels. See Colo.R.Civ.P. 241.2 and 241.14. The two panels together comprise a grievance committee. Rule 241.2. After the hearing board has heard the complaint, it makes a recommendation to the hearing panel, which then makes its own recommendation to the state supreme court. Colo.R.Civ.P. 241.15. The makeup of the hearing board is dictated by rule 241.14(b), which provides: "At least one member of every hearing board shall be a member of the hearing panel or a former member of the [grievance] committee...."

The record of the Colorado proceeding indicates the members of Radosevich's hearing board were not members of the applicable hearing panel. However, the record contains no evidence of whether the board members were former grievance committee members. Radosevich thus argues that his due process rights were violated because the makeup of the hearing board has not been shown to comply with rule 241.14. We disagree.

As noted before, the record from the Colorado proceeding provides our sole basis for evaluating whether that proceeding afforded Radosevich due process. See Dineen, supra. Nothing in the record indicates that the makeup of the hearing board violated rule 241.14(b)--i.e., nothing indicates that the three board members were not former committee members. Radosevich bore the burden of establishing the irregularity, see Dineen, supra; he has failed to carry that burden. We thus need not address whether improper composition of the board would, in fact, violate due process. Radosevich's first argument is without merit.

Radosevich next contends that the Colorado disciplinary scheme violated his due process right to have the final decisionmaker in the disciplinary action actually hear the evidence presented. As support for his argument, Radosevich directs us to a case from the U.S. Court of Appeals for the 10th Circuit in which the court also addressed the constitutionality of Colorado's attorney disciplinary scheme. See Razatos v. Colorado Supreme Court, 746 F.2d 1429 (10th Cir.1984), cert. denied 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985).

In Razatos, a suspended attorney challenged the Colorado disciplinary scheme, arguing that it violated due process because "in cases where credibility of witnesses is crucial to the decision, the final arbiters of fact [here, the state supreme court] must see the witnesses and have an opportunity themselves to assess credibility." Id. at 1432. Specifically, Razatos contended that the scheme offended due process because the disciplinary rules did not grant the Colorado Supreme Court the power to conduct a de novo hearing.

Rejecting this argument, the 10th Circuit first noted that the failure of the rules to expressly provide for de novo hearings did not mean that the supreme court lacked the power to conduct such a hearing. The 10th Circuit then concluded that the Colorado attorney disciplinary scheme provided sufficient procedural safeguards to alert the supreme court as to when it should exercise its discretion and conduct de novo hearings. The court thus rejected Razatos' challenges. Notably, the 10th Circuit did not reach the question of whether such a hearing was required if the state supreme court rejected the findings of the panel...